Briefings prepared for the First Minister on the Deposit Return Scheme between 29th March 2023 and 20th April 2023: EIR Review

Information requested

Original request - 202300353080

I would be grateful if I could receive a copy of all briefings prepared for the First Minister on the Deposit Return Scheme between 29th March 2023 and 20th April 2023.

Response

Further to my letter of 12/09/2023, I have now completed our review of our response to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs) for a copy of all briefings prepared for the First Minister on the Deposit Return Scheme between 29th March 2023 and 20th April 2023

“A review into this response on the basis that the exemption process is of significant public interest and has been discussed widely in Parliamentary debates and the media. To aid transparency and inform public debate I believe that the exemption 10(4)(d) (material in the course of completion, unfinished documents, or incomplete date) and 10(4)(e) (internal communication) should not apply in this case.”

I have concluded that a different decision should be substituted.

In conducting my review, I have reconsidered the information previously withheld, revisiting the application of the exception and the public interest test in each instance. As you did not express any dissatisfaction with the application of regulation 11(2) (personal information) in your request for review I have not considered information previously withheld under this exception.

I have determined that most of the information previously withheld under regulation exemption 10(4)(d) (material in the course of completion, unfinished documents, or incomplete date) and 10(4)(e) (internal communication) can now be disclosed. I have enclosed a copy of this information in Annexes B and C to this letter.

I am however satisfied that a small amount of information previously withheld under regulation 10(4)(e) would remain exempt from disclosure under this exception. I have set out further reasoning for my conclusion in Annex A to this letter.

Advice and assistance

Under our duty to advise and assist, additional information is available in the public domain First Minister meeting with the Scotch Whisky Association: FOI release - gov.scot (www.gov.scot) 

Annex A

Explanation of Exemptions Used

Regulation 10(4)(e) – Internal Communications

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to a small amount of the information you have requested because it is internal communication between Scottish Government Ministers and officials about the deposit return scheme.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the deposit return scheme will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue while it is still under discussion.

Regulation 10(4)(e) – internal communications

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some the information you have requested because it is internal legal advice and disclosure would breach legal professional privilege.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI - 202300374941 - Information released - Annex B

File type

15 page PDF

File size

306.5 kB

FOI - 202300374941 - Information released - Annex C

File type

13 page PDF

File size

364.2 kB